TMI Blog2015 (10) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment and in pursuance of circular instructions only, the order impugned before appellate authority was passed and that order needs no interference by this Court - Decided against Assessee. - Central Excise Appeal No. 50 of 2004 - - - Dated:- 12-2-2015 - K.C. Bhanu and M. Seetharama Murti, JJ. Shri M. Sreeramulu Reddy, Advocate, for the Appellant. Shri V. Gopala Krishna Gokhaley, Advocate, for the Respondent. JUDGMENT This appeal is directed against the order, dated 24-5-2004, in Appeal No. E/121/2003 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, whereunder and whereby, appeal filed against order, dated 29-10-2002, in Appeal No. 108/2002(H-I)CE passed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch loss the credit could have been disallowed. In the absence of such a finding, the appellants are entitled to take the credit. That is a case where the appellant company lost the duplicate copy of the invoice in transit and that fact has not been denied or disputed, therefore, it was held that the appellant company therein is entitled to Modvat credit. 4. On the other hand, learned Counsel for the respondent placed reliance on a Larger Bench decision reported in Commissioner of C. Ex., New Delhi v. Avis Electronics Pvt. Ltd. - 2000 (117) E.L.T. 571 (Tri. - LB), wherein it is held thus (para 6) : 6. Learned D.R. representing the Revenue submitted that a manufacturer can take credit of the duty paid on inputs on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duplicate copy of the invoice is lost, manufacturer should establish the same to the satisfaction of the concerned Assistant Collector. On the Assistant Collector s satisfaction regarding the loss of the duplicate copy of transit, the manufacturer can take credit of the duty paid on inputs received in the factory on the basis of the original invoice. Only on such a condition the original invoice can be of assistance to the manufacturer enabling him to take credit of the duty paid on the inputs. This is the legal position. Contrary view expressed in the case of Mahavir Spinning Mills [1998 (98) E.L.T. 164] is not the correct legal position. The ratio laid down in the above judgment is very clear that the Modvat credit cannot be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts and processed fabrics. The High Court has rightly come to the conclusion that the circulars issued by the Board are binding on the department. An effort was made by the learned Solicitor General to get this case referred to a Larger Bench. We do not accept this contention in view of number of decisions and especially the Constitution Bench decision in Dhiren Chemical Industries (I) (supra). From the above circular instructions, it is clear that the circular instructions are binding on the department and in pursuance of circular instructions only, the order impugned before appellate authority was passed and that order needs no interference by this Court. 6. Accordingly, the Central Excise Appeal is dismissed. There shall be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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